State v. Andrus

FOURNET, Chief Justice

(dissenting as to the holding under Bill of Exceptions No. 5).

The Louisiana constitution of 1921 provides that “[p]rosecution shall be by indictment or information” (Section 9 of Article I), and that “In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * '* Section 10 of Article I. Moreover, the indictment or information must be sufficient to insure that no one “be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial.” Section 9 of Article I.

Under these fundamental and basic principles upon which all of our criminal justice rests the accused, as Wharton points out in his work on Criminal Law and Procedure, "has a substantive right to be informed by the indictment or information in simple, understandable language of the crime he is charged with and the acts constituting the crime, in sufficient detail to enable him to prepare his defense and to be protected in the event of double jeopardy" Volume 4, page 557, Section 1762. (The emphasis has been supplied.)

The jurisprudence under these constitutional guarantees establishes that the test of the sufficiency of a criminal charge is not whether it might possibly have been made more certain, but whether it sufficiently .apprises the defendant of what he must be prepared to meet, and, in the event of a subsequent proceeding against him for a similar offense, will sustain a plea of former acquittal or conviction. See, United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Potter, C.C., 56 F. 83; State v. Varnado, on rehearing, 208 La. 319, 23 So.2d 106; State v. Straughan, 229 La. 1036, 87 So.2d 523; 4 Wharton’s Criminal Law and Procedure, 551, Sections 1760, 1762, and the authorities cited in these decisions and textbook.

The Louisiana legislature, in adopting the short forms prescribed for charging certain well known crimes as set out in Article 235 •of the Code of Criminal Procedure (now R.S. 15:235) did so not with the view of in any way abrogating these fundamental and basic guarantees, but merely to conform with the general trend in the courts and among men of law to relax highly technical and arbitrary rules of the common law that had grown up around the framing and construction of indictments and informations by eliminating much of the tautology and prolixity that was unnecessary for the protection of an accused’s constitutional rights. And while these forms in Article 235 are important guides in drawing up a criminal charge, they were never intended to be used or interpreted as dispensing with allegations sufficient to meet this two-fold constitutional test.

Had this court felt the short forms reflected such an intention on the part of the legislature, it would have stricken them down as basically and fundamentally defective. Instead, in all instances where the short forms were attacked, they have been upheld, provided the charge as drafted in the short form contained sufficient detail to apprise the defendant of the nature and cause of the accusation, and also to serve as a basis for a plea of double jeopardy.¹

This is emphasized by the fact that this court declared unconstitutional the amendment to Article 235 contained in Act No. 223 of 1944, which stipulated that “in all cases of crime included in the Criminal Code but not covered by the short forms hereinbefore set forth, it shall be sufficient to charge the defendant by using the name and article number of the offense committed.” In striking down this provision in State v. Straughan, 229 La. 1036, 87 So.2d 523, this court held it deprived the accused of the basic constitutional rights set forth in the 5th and 6th amendments to the federal constitution and Sections 9 and 10 of Article I of our constitution. The court further held that inasmuch as the criminal charge was, itself, fatally defective, it could not be cured by the state’s answer to the motion for a bill of particulars.

In so holding, we stated: “ * * * there can be no question but that constitutional provisions of the state are supreme, transcending any legislative enactment — or judicial pronouncement or executive act for that matter — and in prescribing the form of charge and the procedure in criminal cases a legislature can never, either directly or indirectly, endanger any of the safeguards and protections zvith which the rights of the individual have been surrounded in that instrument, or, by circumvention, in any manner trench upon its guarantees." Continuing, the court observed: " * * * it is the duty of the court to interpret legislative enactments and to decide cases in the light of these guarantees, and it may not, in the name of expediency or in the wake of changing modern trends, permit the legislative body to unlawfully override the mandates of the constitution where these are plain and unambiguous.” (The emphasis has been supplied.)

The amendment to Article 235 under consideration in the instant case was adopted in 1950 to conform with a change made at the suggestion of the drafters of the Revised Statutes adopted that year by adding the short form covering the theft of animals, and which provides that the theft of cattle, horses, mules, sheep, hogs, or goats may be charged as follows: “A. B. committed the theft of a certain animal, to wit, (idescription and number of animal or animals).” (The emphasis has been supplied.)

The indictment in the instant case charges the defendants with “the theft of a certain animal, to wit: One red and white calf, weighing approximately 275 pounds.” It is defense counsel’s contention this indictment is fatally defective in that it is too vague and indefinite to inform defendants of the nature and cause of the accusation against them, and also to serve as the basis for a .plea of double jeopardy, because it failed to properly describe the animal purportedly stolen by specifying the owner thereof or giving any reason for not doing so, i. e., that the owner was unknown; consequently, there is nothing to identify or particularize the crime here charged from the theft of any other hundreds of red and white calves weighing approximately 275 pounds roaming the ranges and pastures in the vicinity.

The gravamen of the offense denounced in the Criminal Code is the “Theft of cattle * * * belonging to another” with the intent “to deprive the other permanently of the cattle * * Article 67.1, now R.S. 14:67.1. In the light of this definition and the constitutional guarantees for the protection of an accused, I am of the opinion the defense objection to the sufficiency of the indictment is a valid one. To illustrate, suppose the defendants in the instant case had pleaded guilty to the charge as drawn and had, subsequent thereto, been charged by a similar indictment with the theft on the same day of a red and white calf weighing 275 pounds and to this indictment pleaded former jeopardy on the basis of the first charge, only to learn that the plea of guilty theretofore given was not to the theft of the red and white calf belonging, to Justice of the Peace Everett Kelly, but,, instead, to the theft of a red and white calf belonging to “John Doe.” There is absolutely nothing in the charge as drawn to protect the defendants in such a case from double jeopardy. (The emphasis has been supplied.)

My view in this respect is fortified by the fact that an exhaustive research of all authorities in the various states on this subject reveals it conforms to the universal jurisprudence,² that is, that in charging the theft or larceny of an animal, the name of the owner is a necessary part of the description in order that the specific crime may be so identified the defendant can properly prepare his defense and use the charge as a basis for a plea of double jeopardy to prevent further prosecution for the theft of the same animal, and, further, to enable the jury to decide whether the animal proved to have been stolen was actually the same one upon which the charge was founded. The particular ownership of the animal is charged in the indictment not to give character to the act of taking, but, instead, to describe the particular taking (offense); consequently, although ownership in any particular person (Joe Bloe instead of John Doe) is not a necessary element of the crime of taking (theft), the allegation of ownership is a matter of description of the crime, and, as such, is necessary for a valid charge. As stated in the landmark case of People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 896, 69 A.L.R. 1378, “There must in every case be identity of accusation * * *. It is the duty of the district attorney to formulate that description with such precision that it cannot be successfully challenged.” (The emphasis has been supplied.)

The necessity for including the name of the ozmier of the stolen animal as a part of the description of that animal, in order that the particular accusation or theft may be identified within constitutional restrictions, is emphasized by the fact that under the jurisprudence of this state at the time this short form was provided for by the 1950 legislature, and, indeed, under the universal jurisprudence of this country and at common law, the markings and color of the animal itself did not form any part of its description. It was sufficient to designate the stolen animal by nothing more than its. species and/or generally understood popular or common name, provided the name-of its owner was given. For this reason charges were upheld in this state as sufficient when the stolen animal described as the property of a named individual³ was. merely designated as “one mule,” “one hog,”' “one beef,” “one yeaiding,” “one bull,” “one heifer,” “three hogs,” and “one head, of cattle.” See, respectively, State v. King, 31 La.Ann. 179; State v. Carter, 33 La. Ann. 1214; State v. Baden, 42 La.Ann. 295, 7 So. 582; State v. Majors, 131 La. 466, 59 So. 904; State v. Hawthorn, 134 La. 979, 64 So. 873; State v. Papillon, 139 La. 791, 72 So.2d 249; State v. Cain, 175 La. 811, 144 So.2d 504; and the very recent case of State v. Odom, 247 La. 62, 169 So. 2d 909.

The basis for this Louisiana jurisprudence, and, indeed, for all of the jurisprudence throughout the country, is the following comment on the common law of England as set out by Bishop in his work ■on criminal law: “Assuming * * * ■ownership to be duly alleged, the following ■expressions descriptive of the thing are severally sufficient: ‘one sheep,’ ‘a horse,’ ‘one •certain hog,’ ‘one cow,’ etc.” 2 Bishop, Section 700. See, State v. Carter, 33 La. Ann. 1214. (The emphasis has been supplied.)

The underlying reason, as indicated in •some of the cases, is obvious. With herds of animals identical in species and similar in coloring and marking roaming ranges and unfenced areas, it is practically impossible to particularize the animal by markings and coloring with the necessary particularity to permit it to be identified standing alone, as, for example, sheep that are, for all intents and purposes, identical and without visible distinguishing marks. Even if the animal is branded, an owner may have hundreds of animals similar or identical in coloring and marking carrying the same brand. Obviously, therefore, a description of the animal standing alone in an accusation, without the name of the owner, as in the case at bar, would render it so vague and indefinite it could never withstand the two-fold constitutional tests of sufficiency.

The only exception to this rule in our jurisprudence is State v. Roshto, 222 La. 185, 62 So.2d 268.⁴ The defendant in that case was charged with the theft of “a certain animal, to-wit, one heifer.” This court in holding such a charge was sufficient relied on our decision in State v. Pete, 206 La. 1078, 20 So.2d 368, an examination of which readily discloses it does not support such a conclusion since in the Pete case the accused was charged with “the theft of an automobile * * * property of Gordons Drug Store, Inc.” Moreover, in the Roshto case, the court gave no consideration whatever to the sufficiency of the charge as a basis for a good plea of former jeopardy, despite the fact defense counsel strenuously urged this, the decision resting on the mere assertion that under the holding State v. Pete the charge was sufficient to inform the accused of the nature and cause of the accusation against him. Its sufficiency to sustain a plea of former jeopardy was not even mentioned. (The emphasis has been supplied.)

The decision in the Roshto case might he persuasive in the instant case were it not unsound, and, indeed, in the very teeth of the constitutional rights guaranteed an accused.

For these reasons I respectfully dissent from the holding of the majority sustaining the ruling of the trial judge that forms the basis of Bill of Exceptions No. 5, which holds the indictment in the instant case meets constitutional tests of sufficiency.

1 . See, State v. Eiscnhardt, 185 La. 308, 169 So. 417, whore the charge was that the accused “murdered Vincent Bologna.” In State v. Brooks, 173 La. 9, 136 So. 71, the defendant was accused of embezzling “a check payable to the First Baptist Church.”" In State v. Duero, 173 La. 438, 137 So. 745, it was charged the defendant forged “a certain instrument purporting to be the will and testament of one Drauzin Ducre, bearing date March 13, 1928.” The accused in State v. Young, 206 La. 202, 19 So.2d 48, was charged with battery with a dangerous weapon upon W. E. Cart. In State v. Pete, 206 La. 1078, 20 So.2d 368, the defendant was charged with “theft of an automobile * * * the property of Gordons Drug Store, Inc.” In State v. Ward, 208 La. 56, 22 So.2d 740, it was charged the defendant “negligently killed one Wilbert Thomas.” In State v. Wright, 215 La. 529, 41 So.2d 76, it was charged defendant burglarized a building “at 316 Strand Street, Shreveport, Louisiana, belonging to Tri-State Wholesale Produce Company, Inc.”

2 . Instances where the owner’s name is not given in charges of animal theft are so rare in the other jurisdictions as to be almost nonexistent. The only two found are as follows: People v. Shaw, 240 N.Y.S.2d 56, 38 Misc.2d 439, where the case was summarily dismissed because the owner’s name had not been given in the charge. In State v. Shroyer, 49 N.M. 196, 160 P.2d 444, where defendant objected to the charge for ■ insufficiency because the owner’s name was not given, the charge was amended to disclose the owner before going to trial.

3 . In State v. Charlot, 8 Rob. 529, the indictment charged the theft of three cows “the property of Herbert Doucet,” and the defendant in State v. King, 31 La. Ann. 179, was charged with the theft of “one mule valued at seventy dollars, the properly of John M. DeFee.” It was charged in State v. Everage, 33 La.Ann. 120, that the accused was guilty of larceny of “one hog * * * the property of N. Fuller and C. A. Presleyand in State v. Carter, 33 La.Ann. 1214, larceny of one hog, property of Alice McKinney.” Larceny of “one beef, of the value of fifteen dollars, of the property of A. T. Broussard” was charged in State v. Baden, 42 La.Ann. 295, 7 So. 582. The charge in State v. Stelly, 48 La.Ann. 1478, 21 So. 89, was larceny “of a hog, the property of Isaac Rider.” In State v. Polite Jim, 48 La.Ann. 267, 19 So. 145, the defendant was charged with stealing “four head of cattle * * * chattels of one Dor sin Prudhomme.” Larceny of “one yearling, the property of John H. Houston,” was charged in State v. Majors, 131 La. 466, 59 So. 904; stealing “one ‘bull’ * * * the property of W. T. Smith" was charged in State v. Hawthorn, 134 La. 979, 64 So. 873; stealing “one heifer” chattel “of Achille Gaubert” was charged in State v. Papillon, 139 La. 791, 72 So.2d 249; and stealing “three hogs of the property of Clarence S. Holt,” was charged in State v. Cain, 175 La. 811, 144 So. 504. (The-emphasis has been supplied.)

4 . Despite the holding in the Roshto ease, subsequent cases coming before this court on the subject did not follow it. In State v. Ganey, 246 La. 986, 169 So.2d 73, the charge was theft of “a cow” belonging to Alvin Edwards. In State v. Odom, 247 La. 62, 169 So.2d 909, the charge was the taking of “one head of cattle, property of Sidney Guillory." (The emphasis has been supplied.)